Legal Categorizations
Sometimes the legal system categorizes crimes so that it can avoid difficult line-drawing. A good example comes from the Seattle area, where a man allegedly posed as a porn talent scout and tricked women into having sex with him. The women never obtained the hoped-for job opportunities in the pornography industry, and so they feel violated and have accused him of rape, the argument being that they didn't give informed consent. It's kind of a Music Man for the 21st century, except so far as I can tell none of the women has fallen in love with him.
I should start by saying that what the man is accused of doing is terrible and is almost certainly illegal regardless of whether it is "rape." (I should also note that this isn't legal advice!) But consider the logical implications if the law required not just consent, but informed consent, in order for a sexual encounter to be considered consensual. Judges and juries would then be forced to consider what level of deception removes the "informed" part of the standard, which necessarily involves controversial value judgments. Traditionally, therefore, the law has steered clear of this question, and has merely required that the participants competently give consent. To over-simplify a bit, if you're too young or too drunk to give consent, then it's rape. But if you're fooled into giving consent by a misrepresentation, then the sex was consensual for purposes of determining whether a rape has occurred. (There are many other criminal and civil violations that may be implicated, which we won't get into. Certainly a misrepresentation about something like HIV status is going to raise issues, but those issues traditionally wouldn't have included liability for rape.)
Imagine the following misrepresentations that men can (and probably have) made in order to obtain sex:
I should start by saying that what the man is accused of doing is terrible and is almost certainly illegal regardless of whether it is "rape." (I should also note that this isn't legal advice!) But consider the logical implications if the law required not just consent, but informed consent, in order for a sexual encounter to be considered consensual. Judges and juries would then be forced to consider what level of deception removes the "informed" part of the standard, which necessarily involves controversial value judgments. Traditionally, therefore, the law has steered clear of this question, and has merely required that the participants competently give consent. To over-simplify a bit, if you're too young or too drunk to give consent, then it's rape. But if you're fooled into giving consent by a misrepresentation, then the sex was consensual for purposes of determining whether a rape has occurred. (There are many other criminal and civil violations that may be implicated, which we won't get into. Certainly a misrepresentation about something like HIV status is going to raise issues, but those issues traditionally wouldn't have included liability for rape.)
Imagine the following misrepresentations that men can (and probably have) made in order to obtain sex:
- I think you are beautiful.
- I love you.
- I want to marry you.
- I will divorce my wife to be with you.
- I am descended from French royalty.
- I am in a rock band.
- I have never cheated on you.
- I will give you a job.
- I will give you a car.
- I will stay in shape throughout our relationship. (Note that this is only a misrepresentation, as opposed to a broken promise, if the man doesn't intend to stay in shape at the time he makes the statement.)
- I am the recipient of a MacArthur "genius" grant.
- I don't snore.
- I am a feminist.
It's hard to see how any of those misrepresentations could turn an otherwise consensual encounter into rape, although as noted above some of them may give rise to other forms of legal liability. But this is just stating the conclusion, it's not an argument. Why shouldn't at least some of these misrepresentations rise to the level of rape? After all, women may subjectively feel much worse about having sex with a man who falsely makes one of the statements above than they would about having sex with a partner while they are drunk, and yet only the latter would traditionally be categorized as rape. Isn't that a strange result? Here is the reaction of one of the victims:
For Shearer, the idea that what happened to her wouldn't be considered sexual assault may be the most devastating part. She feels like the police aren't on her side, that they insinuated "my rape wasn't really a rape."
But how much weight do we want to give to women's subjective experiences? Let's say a man who is 1/4 black lies about his racial background in the lead-up to having sex with a racist woman. She might feel violated and polluted—again, much more violated and polluted than she might feel if she has sex with her boyfriend while drunk—but are we going to let her subjective experience control the legal categorization of the encounter? What about a lie about religious background? Political beliefs? Criminal history? Alcoholism?
Anyway the law struggles to address the full spectrum of human experience.
posted by James | 9:30 AM
3 Comments:
My take on this is that our actual intuitions in this matter come from thinking about violence. The spectrum of non-rape situations you list all have in common the fact that the victim (of betrayal, etc.) is not impaired in her capacity for physical resistance. The situation that we are (socially) actually trying to avoid is that of a drunken person who realizes too late that she is powerless and is then treated violently. The rule saying "all sexual encounters involving incapacitated drunk people are ipso facto nonconsensual" is meant to cover all of these cases, without forcing an unreasonable burden of proof on a probably blackout drunk victim...
I am not convinced that it's a sensible rule, but I think it is not unheard of to have laws that are overbroad -- in the sense that they criminalize some behaviors that are not intuitively criminal -- because the overbroad law is feasible to enforce and the targeted one is not. That some applications of the overbroad law concern intuitively noncriminal behavior is true but not really to the point.
Yeah sure. But if a woman showed up at the police station and said, "My boyfriend had sex with me without my consent while I was drunk," it would be taken seriously. The police might not ultimately arrest the guy, and the prosecutor might not ultimately bring charges, but they wouldn't flatly tell her that it wasn't rape.
But these women were rebuffed by the authorities because the legal theory of rape generally doesn't extend to cases where consent was obtained under false pretenses. They subjectively feel as though they've been raped, but the law doesn't recognize it, even though it recognizes cases that are much less subjectively bad. You're right that prosecutors are unlikely to charge a man who had mutually enjoyable sex with his drunk girlfriend, but it fits within the definition of "rape" in a way that this guy's actions don't (at least under traditional definitions, which appear to be the ones used in Washington).
Well I don't think the subjective feeling is dispositive or even really very relevant. The actual -- common -- practice that we are actually trying to prevent is violent and coercive sex. Prosecuting various hazy cases of drunken sex is relevant to deterring and punishing violent + coercive sex for burden-of-proof reasons. The subjective-feel cases are irrelevant to this real aim; they are also comically unenforceable.
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